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Daytona Beach Legal News - Power Of Attorney

The Law Office of Paul Bernardini

Nursing Home - Power of Attorney

In a nursing home resident's rights case, the trial court erred in finding that a durable power of attorney did not give the resident's wife authority to enter into the nursing home admission agreement on her husband's behalf. Zephyr Haven Health and Rehab Center, Inc. v. Estate of Clukey, 39 FLW D561 (Fla. 2nd DCA 3-14-2014).

Nursing home durable power of attorney

Another case allowing arbitration regarding nursing home cases is Tampa HCP v. Satan, 36 FL W D2350.

Where a nursing home resident's wife acting under a Durable Power of Attorney signed an Admission Agreement for her husband, and also signed an addendum that provided for arbitration of disputes only in her capacity as a financially responsible party, and not as the resident's representative, the arbitration provision was not enforceable against the resident of the nursing home. Lepisto v. Senior Lifestyle New Port Limited Partnership, 36 FLW D1655 (4th DCA Fla. August 3, 2011).

It is generally better for the injured person to avoid arbitration and it is generally better for the nursing home to have arbitration. Many people sign arbitration agreements without realizing what they signed. This case and the one following indicate how important it is for people to fully understand what they are signing. The sa.'!le applies for nursing homes, hospitals as well as insurance policies regarding uninsured motorist coverage.

For example, a health care power of attorney appointing a nursing home resident's daughter as her health care surrogate did not empower the daughter to consent to arbitration of a dispute with the nursing home. Estate of Irons v. Arcadia Healthcare, 66 So. 2d 3rct 396 (2"ct DCA Fla. 2011 ). On the other hand, some courts enforce harsh provisions of arbitration agreements.

For example, in Florida Carrollwood Care v. Gordon, 36 FLW D1716 2d DCA Fla. August 5, 2011) the Second District held that an arbitration agreements limitation on discovery and a $250,000 limit on noneconomic damages were not sufficient, standing alone, to support a finding of substantive unconscionability and were valid clauses. When dealing with "letters of protection" to doctors, the plaintiff should be very careful and so should their attorney. In Katzman v. Rediron Fabrication, Inc., 36 FL W D 17 4 7 (Fla. 4th DCA), the doctor was required to allow the insurance company to investigate the doctor's charges.

After the auto accident, the plaintiff's lawyer referred the plaintiff to a doctor who entered into a letter of protection. The doctor then performed a controversial and expensive outpatient procedure. The Fourth District held that the trial court did not abuse its discretion allowing the defendant to seek discovery from the physician regarding how often the doctor had ordered the procedure over the preceding four years and what he had charged in litigation and non-litigation cases.

The above information is intended for general purposes only and should not be construed as legal advice.